Barely a few days had passed since the Israeli bombing of the Gaza Strip when a dire warning was sounded.
United Nations experts had raised the alarm that Palestinians in Gaza were at risk of genocide. The Israeli army was attacking the coastal enclave, forcing most of the population from their homes and imposing a strict blockade that prevented the entry of food, water and other supplies.
Since then, more warnings have followed along with calls for the international community to act.
Now, as the International Court of Justice (ICJ) prepares to hear a case alleging that Israel is committing genocidal acts in Gaza, world attention is once again focused on what can (or should) be done to stop the war and prevent crimes such as genocide.
South Africa, the country that brought the case to the ICJ, invoked in its decision an “obligation to prevent genocide” as a signatory to the United Nations Genocide Convention, something experts say is a critical step in such cases.
“International law considers genocide to have the special character of being relevant to everyone,” explained Mark Kersten, assistant professor of criminology and criminal justice at the University of the Fraser Valley in Canada.
“What South Africa is saying, among many other things, is that it has an obligation to prevent genocide under the Genocide Convention and therefore an obligation to do something about what it considers to be genocide in Gaza,” he told Al Jazeera.
Convention
Signed in 1948, after World War II, the Convention on the Prevention and Punishment of the Crime of Genocide – the Genocide Convention – “codified for the first time the crime of genocide.”
“It signified the international community’s commitment to ‘never again’ after the atrocities committed during World War II,” the UN says on its website.
Today, 153 countries are parties to the convention, confirming “that genocide, whether committed in peacetime or wartime, is a crime under international law that they undertake to prevent and punish.”
States can fulfill their obligation to prevent genocide in several ways, including by appealing (as South Africa has done) to the ICJ, the UN’s highest court.
In its submission, South Africa argued that Israel not only “has failed to prevent genocide,” but also “engaged, is engaging, and is at risk of engaging in additional genocidal acts against the Palestinian people in Gaza.”
“The acts in question include killing Palestinians in Gaza, causing them serious physical and mental harm, and inflicting living conditions on them calculated to bring about their physical destruction. All acts are attributable to Israel, which has not prevented the genocide and is committing it in clear violation of the Genocide Convention,” the presentation reads (PDF).
“South Africa is well aware of the particular weight of responsibility in initiating proceedings against Israel for violations of the Genocide Convention. However, South Africa is also acutely aware of its own obligation – as a State party to the Genocide Convention – to prevent genocide.”
This goes further than other genocide cases previously heard by the court, Kersten said.
However, one important precedent was a case (PDF) brought by Gambia in 2019. It argued that Myanmar was committing genocide through actions “aimed at destroying” the largely Muslim Rohingya minority group “in whole or in part.”
Proceedings are ongoing and Canada, France, the United Kingdom and other countries filed a joint petition in support of Gambia’s case late last year.
“This case confirms that any contracting party can bring a case under the Genocide Convention,” said Amanda Ghahremani, an international criminal lawyer and researcher at the Center for Human Rights at the University of California, Berkeley, in the United States. “It doesn’t necessarily have to be a case between the states directly involved.”
‘Serious risk’ threshold
In 2007, the ICJ also established when States can act to fulfill their obligation to prevent genocide, noting that their responsibility does not begin only “when the perpetration of genocide begins.”
“That would be absurd, since the objective of the obligation is to prevent, or attempt to prevent, the occurrence of the act,” the court said (PDF) in a decision in a case brought by Bosnia and Herzegovina against Serbia and Montenegro. for crimes committed in the former Yugoslavia.
Instead, the obligation arises “at the moment when the State is aware, or normally should have been aware, of the existence of a serious risk that genocide will be committed,” the court explained.
“From that moment on, if the State has means that could have a deterrent effect on those suspected of preparing a genocide, or reasonably suspected of harboring a specific intention… it has the duty to make use of those means according to the circumstances.” . permission.”
In the Gaza case before the ICJ, South Africa asked the court to take interim measures, including urging Israel to end its attacks on the enclave, punishing public incitement to genocide and lifting restrictions on the delivery of aid to Palestinians in the territory.
Kersten explained that South Africa does not have to immediately demonstrate that genocide is occurring for such measures to be approved, but rather must demonstrate that there is “a serious risk of genocide,” a lower threshold.
“We can differ on whether Israel as a state is committing genocide or has committed genocide,” he said.
“But we can definitely say, based on all the statements and all the violence, the hunger, the siege, the blockade, the expulsions and all those things, that there is a serious risk of genocide, and if there is a serious risk of genocide , there is a duty to prevent it.
“And that is, to me, one of the most powerful things South Africa has said.”
Political will and coherence
Meanwhile, if a state does not comply with an ICJ ruling, the other party can go to the UN Security Council to enforce the decision, Ghahremani explained.
But even that path does not guarantee compliance. Ghahremani noted that last year the court issued provisional measures (PDF) in the Ukraine v. Russia case, ordering Moscow to immediately suspend its military operation while it considered kyiv’s case. Russia, which has veto power in the Security Council, rejected the decision.
“In reality, you will see that states do not comply with legal rulings, but it is still very important that an international institution like the ICJ judges these cases and publicly validates international norms,” he told Al Jazeera.
Ghahremani acknowledged that Israel’s “consistent disregard for international law” over the past decades “does not paint a great picture of the international legal system and the law enforcement capabilities of international institutions.” Like Russia, the United States, Israel’s main ally, also has a veto in the Security Council.
“There have been many legal interventions in the international sphere related to Israel’s conduct against the Palestinians, and yet Israel continues to violate international law. “When you see that level of impunity… you lose a lot of hope that the international legal system can stop and prevent genocide, among other atrocities,” she said.
Still, he said human rights lawyers and advocates persist in finding new and creative ways to use international law to achieve justice and accountability.
“What’s interesting to me here, with this [South Africa] In this case, it is seeing how the precedents from the situations in Ukraine and Myanmar, where there was more political will, are now being used in this context,” Ghahremani explained.
“I’m very curious to see how that plays out and whether we will see consistency in the positions that states take and in the positions of these international institutions… That will also be very revealing and enlightening for all of us.”
